Walkout Wednesday—What Rights Do Employers Have?
Walkouts by non-union employees have increased sharply over the past couple of years. “Walkout Wednesdays” have become a favorite organizing strategy for labor unions. Unions, like SEIU, make a significant investment of their resources to galvanize non-union employees’ support and participation in walkouts.
The National Labor Relations Act provides protections to employees who engage in protests with coworkers related to their own working conditions, as well as actions taken to support employees of another employer. Workers at a fast-food company with locations worldwide have staged walkouts to have their employer work collaboratively with them to create a plan to stamp out sexual harassment. The Labor Board would likely find that the walkout was protected because the company had the ability to effectuate the change employees demanded: the employer can choose to work with employees to eliminate sexual harassment in its workplaces.
Employee rights in this area are not unlimited, however. Employees who stage a walkout to support a political cause or other concern over which the employer has no control, may find that the Act does not protect them from discipline or discharge. Consider a walkout by employees to protest existing health disparities in a city—how non-whites in general and African Americans, in particular, are at higher risk for conditions like cardiovascular disease and diabetes—as well as access to healthcare disparities. Does the employer have the ability to affect solutions to these healthcare matters? In many situations, this issue is beyond the control of a single employer and employees who stage a walkout may well be outside the protection of federal labor law if they are disciplined or discharged for their participation in the walkout.
Likewise, employees who are represented by a union may not have the right to engage in walkouts during working time. Many collective bargaining agreements prohibit employees from engaging in any work stoppage during the term of the agreement. But, if the CBA has expired, or it does not prohibit work stoppages, the unionized employees may have the same right to engage in a walkout as non-union employees.
Employers are well-advised to work with experienced labor counsel to plan for, or respond to, walkouts or other types of job action employees may take.